Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Licensing and Supervision of Leasing Activity (Part 5)
by Steven Gilyeart, Editor, The International Leasing Resource
12 March 1999. Please Note: This article is the fifth in a series.
How Leasing Gets Regulated Licensing of Lease Activity A distinction must be made between licensing and regulation/supervision.
Licensing is the process by which permission to engage in the leasing business is obtained. It may just a simple registration of the company that will be engaged in the activity, with no need for special permission or other approval process, or it may involve a review of an application on the merits.
Regulation/supervision, on the other hand, is an on-going process of leasing company performance evaluation, at least as regards certain prudential norms, for the purpose of preserving the financial soundness of the leasing enterprise and the integrity and reputation of the leasing industry and the financial sector as whole.
Licensing Considerations Licensing comes in two major forms: one in which approval to engage in business is essentially automatic, and one in which it is not. The former involves a simple registration of the business, while the later involves a review of the application on its merits.
Licensing As a Registration Process In unregulated leasing markets, leasing companies are chartered under the countries' (or other political jurisdiction, such as a province or state) companies act, the same as any other business. While rarely organized as sole proprietorships, general partnerships or any other form of business entity which would not provide a shield from unlimited liability to creditors and other claimants, leasing companies are mostly commonly organized as limited liability companies, joint stock companies, corporations or the like. With such a charter, the only significant requirement for the obtaining of the business charter is the minimum capital requirement established for all businesses organizing under the countries' companies act. Typically, the minimum capital requirement is minimal indeed, such as US$100-200. The information that must be submitted to the state entity granting the company franchise is usually just a list of officers and directors, with addresses and their contract information, and information about the companies' share structure. A general description of the type of business the company plans to engage in is also provided but is more for informational purposes rather than a limitation on the boundaries of business activity that the company can legally pursue. There may also be a requirement that there be a sworn statement to the effect that none of the officers or directors have criminal convictions for fraud, embezzlement or other similar types of crimes.
Licensing as a Merit Review Process If the licensing of a leasing company involves a review of the application on its merits, it follows that the request for the license may be denied. Entry into the leasing marketplace under this system is far from assured. In addition to the same type of information that must be supplied in the registration process, a merit review process will require detailed histories on the financial industry experience of those that will be involved in the management of the leasing company. The goal becomes an assessment of their perceived competency to be lessors. Detailed business plans, pro formas, even an operations manual may be required. While this approach would appear consistent with the over-all goal of preventing lease company failures, the usual reality makes the approach inoperable. The banking authority officials reviewing these applications will invariably have no leasing experience and no knowledge or base of comparison with which they perform a merit evaluation. At best, they will by default rely on traditional banker and banking criteria, which, as previously mentioned, does not match the more entrepreneurial skills and personality and business operational structures needed to launch and grow a leasing business. The wrong candidates may get the approval and right ones turned away. Moreover, in the emerging markets where supervision is justified, the banking authorities are almost always strapped for budget resources and evaluation and approval of new businesses is an item low on the agenda. The commencement of the leasing industry may be delayed through sheer inattention. For these and other reasons, merit review licensing is not a realistically viable or necessary option. There is a better way.
"License Now, Supervise Later" In many emerging markets, there is an immediate need for leasing. While leasing may need to subsequently be supervised, there is usually no immediate need to supervise lessors at the inception of the industry itself. In fact, supervision may never be needed. Yet, a reasonable approach for countries desiring some control over the leasing industry would be to allow leasing companies to establish themselves by following licensing procedures set forth in a central bank regulation, which procedures would include the submission of a simple annual report containing the kind of information that supervision would involve (e.g., prudential norm data on capital, gearing, provisioning, insider transactions). However, there would be no supervision of lease companies for some time, just the collection of data. This delay would offer several advantages to all parties concerned: A collection of data on lease company activity could be developed over time and the norms and standards of leasing in the country could be observed and noted as they actually occur in the local environment, rather than being the generalized, prospective speculations based on activities elsewhere. The license process would be simple and almost automatic; if the application shows adequate minimum capital and management with reasonable integrity (e.g., no serious criminal records), it be deemed approved within a specified period, such as 60 days, unless the central bank specifies a specific written objection. This would expedite the approval process, but still leave the central bank with the option of challenging seriously questionable applications. The data collected over time would give the central bank personnel experience and familiarity with the leasing business.
It is absolutely essential that any supervising agency know the industry it is to supervise; one cannot supervise something that none knows nothing about. At an unspecified later date, once the central bank has experience with leasing, prudential norms may be established and active supervision could commence. By that time also, any uniquely local problems or other problems that have arisen can be addressed. If the industry is developing smoothly without any irregularities or serious problems, active supervision may not need to commence at all. If it does, it can be tailored to the problems at hand and the central bank resources available. This also still allows any developing public confidence problem to be timely addressed. There would be an easy license process and a simple reporting system with only minimal demand on budget-strapped central bank resources. Leasing companies could commence business sooner rather than later. Leasing companies would not be subject to governmental interference unless problems actually did develop. The absence of a regulatory burden can allow them to focus on growing a business new to the country. The absence of a regulatory burden would allow leasing companies to be more flexible and compete more effectively with commercial banks. It is this flexibility that allows leasing companies to be successful against bank competition, as banks always have a strong advantage from their lower cost of funds. Licensing should not be limited to only banks or bank-affiliated enterprises. Normally, banks as such are not leasing innovators in most countries. Independent lease companies often have created the market and developed it to a comfort level acceptable for more traditional, conservative bank managers. The "license now, supervise later" approach may be the best balance of the needs and concerns in launching a leasing industry in many of the world's leasing markets.
Possible Existing Authority for The "License Now, Supervise Later" Approach A country may already have the authority for leasing licensing and supervision in place in existing laws and regulations and yet may not appreciate that fact. Of course, if the local, domestic banking law requires or is interpreted to require a bank license to engage in financial leasing, a bank license will be required. Leasing companies will be no different than banks and leasing will simply be another bank product. This situation will impair the introduction of financial leasing into the country. Yet, a more common situation is that the central bank's enabling legislation is seen as explicitly or implicitly giving it the authority to address "financial services" as the central bank may so construe that (or a similar phrase) from time to time. In other words, the central bank may already have some discretion to determine whether or not it needs to involve itself as a licensor, supervisor or regulator and when. This legislative circumstance allows enterprises that might be on the innovative edge of quasi-financial services to proceed with their business. If the central bank raises an objection or expresses concern at a latter date, then the matter is addressed and solutions negotiated. This approach also has the advantage of dealing with only problems that are problems, rather than forcing speculation about what the problems might be for a business activity that does not exist yet because there is no regulation to allow it. Adoption of a principle of "implicit authority" to address matters within its sphere of responsibility would be reasonable and legally justifiable under generally accepted legal principles. This approach would also allow independent lease companies, i.e. those not affiliated with a bank, to form. Leasing may then be allowed to commence sooner in a country rather than later. Yet, this approach is not always the best for an emerging market with a new leasing industry that has started spontaneously.
To be continued ...
Updated 12 March 1999